The concept of crossing the floor under Malawian constitutional law

• Pages: 185-208
• Date: 01 December 2008
• Published date: 01 December 2008
• Author: Msaiwale Chigawa
• DOI: 10.10520/EJC76207

CROSSING THE FLOOR 185

THE CONCEPT OF CROSSING THE FLOOR

UNDER MALAWIAN CONSTITUTIONAL LAW

Msaiwale Chigawa*

ABSTRACT

This article examines the evolution of the concept of crossing the floor in Malawi

from 1964 to date. The gist of this concept is that members of the National Assembly

should retain the status they professed at the time of elections throughout their

tenure in the National Assembly. They cannot change sides in the National

Assembly without seeking a fresh mandate. The original terms of section 65(1) of

the 1994 Constitution were in line with this generally accepted meaning of this

concept. Crossing the floor was limited to movement by members within the

National Assembly. However, the Constitutional Amendment of 2001 extended the

concept to political activities by the members pursued outside the National

Assembly. This is rather bizarre and arguably constricts the freedom of association

and freedom of conscience of the members of the National Assembly. This

amendment is unconstitutional and the Malawi Supreme Court of Appeal erred in

refusing to declare it so in the Presidential Reference case.

IINTRODUCTION

The Constitution of the Republic of Malawi recognises the concept of

crossing the floor by members of the national Assembly and this has been the

position of the law since the introduction of multi-party democracy in the

country in 1994.1 The relevant provision is section 65 of the Constitution. This

LLB (Hons) (Mal); LLM (Cantab); DPhil (Oxon); Fellow of the Cambridge Commonwealth

Society, Lecturer in Law, University of Malawi.

*

1Malawi held a national referendum on 14 June 1993 to decide whether the countr y should

remain a one-party state or become a multi-party democracy. A majority of those that voted

chose multi-party democracy. Consequently, section 4 of the 1966 Constitution was amended

to allow multi-party politics. The first multi-party elections were held in May 1994. A new

Constitution was adopted and entered into force on 18 May 1994. Sec 40 of this Constitution

guarantees political pluralism. Sec 32 guarantees freedom of association. See generally Jande

R Banda ‘The constitutional change debate of 1993 1995’ in Kings M Phiri & Kenneth R Ross

(eds) Democratisation in Malawi: A stocktaking (Blantyre: CLAIM, 1998) 353; Peter A Mutharika

‘The 1995 democratic Constitution of Malawi’ 1996 40(2) Journal of African Law 205;

Msaiwale Chigawa ‘The fundamental values of the Republic of Malawi Constitution of 1994’

(Lilongwe: Malawi Law Commission, 2006), concept paper presented to the First National

Constitution Conference at Capital Hotel, Lilongwe, 28 31 March 2006.

section was amended in 2001 to widen its scope and application. However, in

spite of its doubtful and controversial nature, the concept of crossing the

floor under section 65 of the Constitution, as amended, was upheld by the

Malawi Supreme Court of Appeal (MSCA) in the Presidential Reference case.2

The issue of crossing the floor was also a subject of discussion by the

Special Law Commission on the Review of the Constitution of 2006. The

Commission considered a number of relevant issues.3 The first one was

whether ‘crossing the floor’ in its traditional sense weakens or strengthens

democracy in the country. The second major consideration was whether the

application of the concept should be extended to members of the National

Assembly who are elected on an independent ticket during elections.4 It is

therefore fairly certain that the law on crossing the floor is not settled yet. It is

bound to change again in the near future; hence the need for further debate

and clarification.

The first issue considered in this article is whether the enforcement of

this concept in constitutional law weakens or strengthens democracy in

Malawi. This calls for a consideration not only of the relationship between

political parties that are represented in the National Assembly, but also

between individual members of the National Assembly and their political

parties. It also calls for a consideration of the competing political interests of

individual members in the House, especially their freedom of conscience and

freedom to make political choices.

The second issue relates to the true meaning and scope of crossing the

floor. The current law in Malawi is capable of being interpreted in such a way

186 (2008) MLJ VOL.2, ISSUE 2

2See In the Matter of a Presidential Reference of a Dispute of a Constitutional Nature under sec 89 (1) (h)

of the Constitution and in the Matter of sec 65 of the Constitution and In the Matter of the Question of

Crossing the Floor by Members of the National Assembly, MSCA Presidential Reference Appeal No

44 of 2006 (unreported judgment of 15 June 2007). For a critical review of this case in the

context of the courts’ power of judicial review, see Chikosa M Silungwe ‘The court’s power of

judicial review, composition of the National Assembly and the Presidential Reference on

section 65’ (2007) 1(2) Malawi Law Journal 235 246; Bruno P Matumbi ‘The fallacy of the

presumption of perfection: The Presidential Reference on section 65 and its ramifications’

(2007) 1(2) Malawi Law Journal 247 257.

3See generally Malawi Law Commission Issues paper (Lilongwe: Law Commission, 2006),

available at http://www.lawcom.mw/ (accessed 15 September 2008).

4The Commission reached the conclusion that sec 65 of the Constitution as originally adopted

in 1994 captured the true meaning of the concept of crossing the floor and that its validity

and necessity could not be impeached. The majority of commissioners were of the view that

this section should apply to independent members of the National Assembly in order to

comply with the spirit behind the provision, which is to prevent members from changing

their status in the House before the expiry of their parliamentary term. Although the

Commission was unanimous on the view that a member of the National Assembly changed

his or her status when he or she joined a political party not represented in the House, it

concluded that this did not constitute crossing the floor. However, it proposed that all other

movements outside the National Assembly that result in a change of political status by a

member of the House should be restricted. See Malawi Law Commission Report of the Law

Commission on the review of the Constitution (Lilongwe: Government Printer, 2007).